"We are sorry but we are unable to accept applications from candidates who require a work permit to take up employment in the UK."

Later in the decision the Tribunal noted that Mr Purohit had a first class degree and a 2.1 Master's degree. He did in fact go on to make an application online and his online form produced a further response:

"Unfortunately we are unable to obtain work permits for trainee solicitor roles and we are therefore unable to proceed with your application."

"49. You will need to show why you cannot fill the post with a 'resident worker' (see paragraph 2). In most cases you will also need to give details of your recruitment methods and give credible reasons why you did not employ a suitably qualified or experienced 'resident worker' or one who, with extra training, could do the job.

51. If you have not met these conditions we may refuse an application and you may have to carry out another recruitment exercise before we reconsider the application.

59. An application will fall for refusal where you have refused to employ a resident worker solely because of a lack of qualifications, experience or skills (including language skills) that were not specifically requested in the job advertisement.

60. To make sure that the results of your advertising reflect the current availability of the skills you need, you should place the advertisement no more than six months before you apply to us.

61. You should allow four weeks for the whole recruitment process to be completed from the date the post was advertised before you send your work permit application."

"Please give specific reasons why you did not employ each 'resident worker', including those you did not shortlist."

The form then had to be signed with a declaration in the following terms:

"The details given in this application are true and complete to the best of my knowledge and belief. I am aware that knowingly making false statements or representations may lead to prosecution (possibly resulting in imprisonment) under the Immigration Act 1971, as amended by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002."

"Information about eligibility to work in the UK, which employers are required to obtain under the Asylum and Immigration Act 1996, should preferably be verified in the final stages of the selection process, to make sure the appointment is based on merit alone, and is not influenced by other factors. Employers can apply for work permits and should not exclude potentially suitable candidates from the selection process. Depending on the employer's recruitment process, and the type of job being filled, candidates might be asked for the relevant documents when they are invited to an interview, or when an offer of employment is made. It is important to carry out these checks before the persons employment begins. The Home Office (see Appendix 5) has published a code of practice for employers on how to avoid unlawful racial discrimination when complying with this requirement."

The Tribunal went on to reject the Respondent's submissions that there was no realistic prospect that they would be able to certify to the BIA that they could meet the stringent eligibility criteria for a work permit. They pointed out that there was no evidence of any dialogue between OC and the BIA to test the assumption that they had made, noting that OC had been able to successfully obtain work permits for qualified solicitors. The Tribunal noted that OC had failed to carry out any review or considered the likelihood of successfully gaining work permits, concluding that all paragraph 49 of the Guidance required was for employers to give credible reasons for their selection and why, given that selection, they did not think that they could train somebody else not requiring a work permit to the same standard.

"Employers can apply for work permits and should not exclude potentially suitable candidates from the selection process."

She argued that this acceptance ignored the central issue for determination of whether OC could in fact apply for work permits for trainee solicitors. She argued that their acceptance of the Code without qualification would appear to determine without further consideration the issue of whether OC could in fact in the circumstances of this case apply for a work permit.

He referred us also to paragraph 1.6 under the heading "Status of the Code"

"Status of the code

1.6 This code is a statutory code. This means it has been approved by the Secretary of State and laid before Parliament. The code does not impose any legal obligations. Nor is it an authoritative statement of the law; only the courts and employment tribunals can provide this. However, the code can be used in evidence in legal proceedings brought under the RRA. Courts and tribunals must take account of any part of the code that might be relevant to a question arising during those proceedings.

1.7 Employers are liable for acts of unlawful racial discrimination or harassment by their workers (see the glossary at Appendix 7). However, employers should be able to defend themselves better in any case of alleged racial discrimination brought against the organisation, if they can show they have taken the steps recommended in this code."

"Ultimately, whether or not the BIA does or does not issue a work permit is a decision for them. Without any evidence to support their stance, it is not for the respondent to second guess the BIA, to assume that the BIA will not grant a work permit and to use that assumption as their reason for not even considering applications from applicants, such as the claimant, on merit."

The Code makes it clear that as far as possible selection should be based purely on merit, and that work permit issues should only come into consideration at the later stage of selection. The Code makes it also clear that as far as possible the employers should make an application leaving it up to the immigration authorities to determine the outcome.

"80. There is nothing tangible to support that assumption and no evidence of any dialogue between the respondent and the BIA to test the assumption that they have made. There is, therefore, nothing that goes to support the assumption that there is no point in applying for a work permit as one will not be provided.

82. We do not accept that it is for the BIA to tell the respondent – a leading international law firm – who is suitable for them to employ in a qualitative sense. It is for the respondent to identify who they consider to be the most suitable – according to their necessarily and properly high criteria – and then to make the case to the BIA for a work permit if they consider there is a case to be made."